Fortunately, there are federal laws to provide protection for pregnant workers against discrimination in the workplace. And while it is significant that the law empowers women with the right not to be discriminated against because of pregnancy, childbirth, or related medical conditions, this does not mean that the practice has ended in the workplace.
Indeed, you may have experienced illegal pregnancy discrimination and may be considering whether to take action to do something about it. You may feel like shouting from the rooftops to tell the world about how you’ve been wronged.
But, in limited circumstances, you may actually be better off to stay quiet.
I hate to say that, because our firm really likes to punish employers that mistreat their employees. Nevertheless, there are times when, depending on our client’s objectives, it just doesn’t make sense to pursue a claim.
These factors are largely personal. It’s up to you whether the time, expense, and stress of pursuing your claim are worth it.
Here are three instances when it may be better not to report pregnancy discrimination:
1. You want to stay at the company because you have a future there.
The Pregnancy Discrimination Act protects you from being fired for filing a complaint if you believe the law has been violated. But consider this. Despite what your employer’s policy says, the reality is that, in most cases, your days are numbered after making a report of employment discrimination.
It may be that the company waits before taking action by, for instance, denying that promotion or taking away sales territory. Even if the company does nothing, you may find yourself at a dead end, plodding along without the hope of any advancement or discretionary incentives.
So, consider your situation and decide whether it is worth the long-term trade-off. If you believe the pregnancy discrimination was an isolated event and it is otherwise a good job, then you may want to hold off on reporting it.
2. You work in a small professional field.
There is often an equal incentive for both the company and the former employee to keep things quiet when a discrimination claim has been made. Because both the company and the former employee have their reputations to consider, confidentiality agreements typically come into play. However, no matter what kind of agreement you have, the reality is that people talk. Unfortunately, you must consider the small risk that you become known as “the woman who sued.” In a small professional field, it may be more advantageous to your overall career to let the pregnancy discrimination go rather than gain the reputation as a litigious liability and jeopardize future opportunities at other firms.
3. You’ve quickly moved onto a new job with similar or better benefits.
Here, the concern is damages. In a discrimination claim, one main source of damages is lost wages. However, if you quickly made a move to another job with similar or better benefits, then you will not be able to recover significant lost wages. While it is possible that you could receive an award for emotional distress and perhaps punitive damages if the case warrants it, juries typically do not award much money. Carefully consider whether to make a claim in this instance, as the end result may not be worth the time, stress, or hassle of litigation.
A Sample Discrimination Scenario
Sarah is a top sales executive at her company that sells specialty equipment to cancer treatment facilities. It is one of only a handful of such companies in the nation.
Shortly after having her first child, she meets with the vice president of sales to discuss the possibility of changing her sales territory so that she can be closer to home. But she also tells him that she does not want to hurt her career, so she will do whatever is best for the company. The VP listens and says he’ll check into it.
A month goes by, and Sarah gets notice that her sales territory is getting cut in half. Concerned, she immediately goes to the VP. He tells her that it has nothing to do with her request; it’s just a restructuring within the company.
Sarah then asks HR about the restructuring and gets a blank stare. The rep tells her she is not aware of any restructuring. After asking around, Sarah learns that the VP only modified her territory and that he gave much of what was hers to a man who has no children. Sarah vents her concerns to a friend and fellow salesperson, who informs her that the VP once told him, “For a good salesperson, a baby is like an anchor around the neck.”
Sarah is, understandably, steaming mad. Not only is this just wrong, but she also may lose approximately 50% of her income.
After mulling it over for some time, and after many late night talks with her husband, Sarah schedules a consult with my firm. Before she makes it in, something interesting happens. An e-mail goes around the company that the VP of sales is taking early retirement and will leave the company at the end of this quarter.
Not 10 minutes later, Meagan, the director of sales for the company, comes to Sarah’s office and says, “I’ll deny this conversation ever happened. But I’m going to become the new VP of sales. I know what happened to you. I wanted you to know that I’m going to make things right. You have a very, very bright future here.”
Taking an I’ll-believe-when-I-see-it approach, Sarah comes to see me.
What would I tell her? I’d talk with her about these factors:
- She has a very, very strong case on liability. The VP clearly lied to her, which suggests a discriminatory intent. Even better, there is a witness who could testify that the VP is prejudiced against salespeople with young children.
- Even though she has a strong case on liability, she won’t stand to win much. That is because, assuming the new VP makes good on her promise, Sarah will only lose income for a short time. Thus, her lost wages, a big component of employment law damages, will be low.
- She could possibly win punitive damages against her company, but that would require a win at trial—at best 18 months down the road—and these damages won’t be high either because the law requires that they be proportional to the lost wages, which we already established are low.
- She could also win emotional distress damages, but these will be low too, because she (thankfully) has not been forced to see a psychiatrist or other health professional as a result of what has happened.
- While she technically does not have to leave the company if she takes action, as a practical matter, her future with the company would likely be over.
- If she sues, it is possible that word would get out in her small professional world. People often overestimate this risk because companies don’t like to publicize an employment dispute. Still, people talk, and the sad reality is that taking action against her employer could hurt her professional reputation. The chance is small, but it has to be considered.
My bottom-line advice: wait. If new management makes good on its promise to put her back on track, then she might not want to take action, even though the company, through the VP, clearly acted illegally. Moving forward, however, could make sense if Sarah feels strongly enough about shining a light on this that low damages and the stress of moving forward are worth the trade-off.
Summing It Up
Whatever you choose, you need to decide quickly because the law requires you to file a claim with the Equal Employment Opportunity Commission within 180 or 300 days of the discriminatory action (depending on the state) if you want to pursue it.
If you need assistance in assessing your circumstances, you should seek the counsel of an attorney.
